The genesis of private dispute resolution in Irish industrial relations

• Date: 01 January 2021
• DOI: http://doi.org/10.1111/irj.12318
• Author: William K. Roche
• Published date: 01 January 2021

The genesis of private dispute resolution in

Irish industrial relations

William K. Roche

ABSTRACT

This article examines the genesis of private dispute resolution arrangements

introduced by employers and unions in Ireland. These forms of collective alternative

dispute resolution (ADR) comprise three-person panels or sole adjudicators, who

mediate and issue f‌indings on collective disputes. Findings may be non-binding or

binding. Using data and interviews covering 11 private dispute resolution arrange-

ments in 10 organisations, the paper identif‌ies the circumstances in which they have

emerged and a series of inf‌luences that lead employers and unions make

path-breaking changes in dispute resolution procedures.

1 INTRODUCTION

Recent decades have witnessed an upsurge of international interest in alternative

dispute resolution (ADR), particularly in Anglo-American countries and also in

Continental European countries, South America, Africa and Asia (see Avgar &

Colvin, 2016; Ebisui et al., 2016; Eurofound, 2010; Euwema et al., 2019; Roche

et al., 2014). For the most part, the literature has focused on innovations in various

forms of ADR for resolving individual employment grievances.

This study adds to the literature by adopting a different focus. It examines ADR

arrangements for resolving collective disputes. These take the form of in-house

dispute resolution tribunals, panels or adjudicators, empowered to adjudicate where

negotiations, or other forms of dispute resolution, such as mediation, fail to settle

differences between employers and unions. These will be termed ‘private dispute

resolution’arrangements (PDRAs). Such arrangements envisage the possibility of

settling collective disputes within the boundaries of f‌irms by making provision

in-house for forms of dispute settlement, such as collective mediation and adjudica-

tion, that were previously provided by external state dispute resolution agencies.

The paper focuses on the genesis of PDRAs in f‌irms in the private and state-owned

commercial f‌irms in Ireland during recent decades. Drawing on 11 case histories of

private dispute resolution in 10 organisations and on detailed research interviews with

the parties directly involved in these, the paper reveals the range of inf‌luences that

account for the emergence and major features of PDRAs. The study begins by

summarising the relevant literature on innovations in collective ADR and poses a

series of research questions that focus the research and analysis. The next section

outlines the institutional context in which PDRAs have emerged in Ireland and

❒William K. Roche, College of Business, University College Dublin, Dublin, Ireland.

Correspondence should be addressed to William K. Roche, College of Business, University College Dublin,

Dublin, Ireland; email: bill.roche@ucd.ie

Industrial Relations Journal 52:1, 82–106

ISSN 0019-8692

© 2021 Brian Towers (BRITOW) and John Wiley & Sons Ltd.

details the research methods adopted. The section that follows develops a theoretical

framework that distinguishes between primary and secondary inf‌luences on the

genesis of private dispute resolution. This is followed by a detailed analysis of

research data drawn from 10 research organisations. The f‌inal section presents a

summary and discussion of the research f‌indings.

2 THE NATURE AND GENESIS OF COLLECTIVE ADR

Although the term ADR is elastic in its international usage, ADR practices and

arrangements are commonly understood as alternatives to litigation in the civil courts

or to mediation, conciliation or adjudication by state conf‌lict resolution agencies,

such as workplace conciliation and arbitration bodies, employment tribunals or

labour courts. ADR practices are also understood as providing alternatives to

long-standing or conventional multi-step individual grievance or collective disputes

procedures within workplaces (Costantino & Sickles Merchant, 1996; Lipsky

et al., 2003; Roche & Teague, 2011; Roche et al., 2014; Ury et al., 1993).

The literature on the features, genesis and outcomes of collective ADR focuses on

both interest-based and ‘rights-based’(adjudication) practices. Interest-based

practices, such as ‘assisted bargaining’,‘facilitation’and ‘interest-based bargaining’

(IBB), support mutually acceptable outcomes between the parties to dispute, whereas

‘rights-based’practices involve adjudication decisions by third parties (Acas, 2005;

Klingel, 2003; Roche, 2015; Ury et al., 1993). ‘Rights-based’practices involve

adjudication decisions or indicative decisions by third parties, sometimes preceded

by mediation and include ‘fact f‌inding’,‘mini-trials’and mediation-arbitration

(usually shortened to ‘med-arb’) (McAndrew, 2014; Roche et al., 2014). Collective

ADR also includes jointly agreed arrangements between employers and unions

establishing internal dispute resolution bodies or other third parties to mediate or

adjudicate unresolved disputes and so reduce the likelihood or preclude disputes

escalating towards work stoppages or being referred for resolution to external state

conf‌lict resolution agencies or labour courts.

The adoption of interest-based collective ADR practices such as internal mediation

and facilitation/assisted bargaining has been associated with the occurrence of

complex, multi-stranded change and restructuring programmes that cannot be

effectively addressed through conventional collective bargaining and dispute

resolution (Klingel, 2003; Roche, 2015). In the United Kingdom, an in-house

collective mediation scheme, involving pairs of trained internal union and manage-

ment mediators, was introduced in a landmark collective agreement between Royal

Mail and the Communications Workers’Union intended to transform the manner

in which workplace conf‌licts, disputes and disagreements were resolved

(Branney, 2019; CWU, n.d.).

Supply-side developments also contribute: including decisions by state conf‌lict

resolution agencies to devote more personnel and resources to assist organisations

in proactive conf‌lict avoidance and a growth in the availability of private practi-

tioners, operating independently, or attached to consulting f‌irms (Bray et al., 2018;

Brown, 2014; Currie & Teague, 2016; Roche, 2015). The adoption of IBB has been

linked to legacies of cooperative labour–management relations or ‘workplace partner-

ship’, and efforts to achieve transformational change in the face of disruptive market

pressures have been key inf‌luences (Bray et al., 2018; Cutcher-Gershenfeld, 2014;

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© 2021 Brian Towers (BRITOW) and John Wiley & Sons Ltd.